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Oct. 18 — The New York Times used an uncommon defense last week in response to Republican presidential
nominee Donald J. Trump’s claim that the news organization committed “libel per se.”

Trump’s attorney sent the publishing house a
letter demanding it remove the “libelous article” after the New York Times published an
article featuring two women who claimed Trump touched them inappropriately.

Libel is a published false statement that damages a person’s reputation.

The newspaper
responded in a letter that the article had no effect on “the reputation that Mr. Trump, through
his own words and actions, has already created for himself.”

Trump has “bragged in a number of different contexts over the past decade about engaging
in this kind of behavior, so a story saying he engaged in this behavior can’t damage
his reputation,”
David A. Schulz told Bloomberg BNA.

Schulz is an attorney with Levine Sullivan Koch &
Schulz, LLP, New York, who specializes in First Amendment issues. He has represented
The New York Times Company on other libel and access cases.

The behavior referenced in the New York Times’s letter included Trump bragging about
“intruding on beauty pageant contestants in their dressing rooms” and allowing a radio
host to refer to his daughter, Ivanka Trump, as a “‘piece of ass.’”

The newspaper’s defense that Trump is libel proof is an uncommon but sound defense
that has been successfully employed in libel and defamation cases, including against
notorious public figures such as mobsters, Schulz said.

The Mobster

An alleged member of the Bonanno Crime Family, John Cerasani, sued producers and distributors
of the
film “Donnie Brasco” for defamation in 1997.

The movie was based on the life of undercover FBI agent Joseph D. Pistone, who called
himself “Donnie Brasco”
and infiltrated the crime family for six years.

The federal district court in New York dismissed the claims in
Cerasani v. Sony Corp.
, 991 F. Supp. 343 (S.D.N.Y.
1998
).

“Cerasani’s reputation is so ‘badly tarnished’ that, even assuming the pre-release
and official versions of the film are defamatory, he can suffer no further harm and
hence no reasonable jury could award him anything more than nominal damages,” the
court said.

Such claims should be dismissed to avoid the costs of defending against the claim
of libel, which can themselves impair vigorous freedom of expression, it said.

he pleaded guilty in federal court in Florida in 1985 to racketeering and committing
the predicate acts of conspiring to rob a bank and possessing marijuana, cocaine and
heroin with intent to distribute;

he had been recently indicted in
United States v. Gangi, a case in which Cerasani and 18 other defendants were charged with racketeering,
extortion, and securities fraud and Cerasani was alleged to be a Mafia enforcer in
a scheme to manipulate the stock market and

his alleged misdeeds were also described in great detail, and he was identified by
name, in Pistone’s book, which became a best seller.

The Porn Publisher

The doctrine was also successfully used in what the Second Circuit called a “grudge
match” between pornography publishers.

In 1983, Robert Guccione, the publisher of Penthouse magazine, sued Larry Flynt, the
publisher of Hustler magazine, for libel.

Hustler had printed that Guccione was married and also had a live-in girlfriend. Adultery
was a crime under state law.

The Second Circuit held that Guccione’s claim failed as a matter of law, both because
the statement at issue was substantially true and because Guccione was “libel-proof”
with respect to an accusation of adultery, in
Guccione v. Hustler Magazine, Inc.
, 800 F.2d 298 (2d Cir.
1986).

Guccione’s reputation had already been established by the time Hustler ran its article,
the court said.

He had several times told reporters that he was separated from his wife and living
with his girlfriend; he testified that friends, family and business associates knew
of the adultery;
and several widely circulated publications such as Newsweek magazine discussed his
adulterous reputation, the court said.

Cases should be dismissed when “an allegedly libelous statement cannot realistically
cause impairment of reputation because the person’s reputation is already so low,”
the court said.

Even false statements should be dismissed, it said.

The reasoning is that libel claims “impair vigorous freedom of expression,” the court
said.

The court warned that the doctrine should be applied “with caution,” because “few
plaintiffs will have so bad a reputation that they are not entitled to obtain redress
for defamatory statements.”

Trump’s Chances

If Trump sued the New York Times, “he won’t get past a motion to dismiss,” Schulz
said.

The New York Times’s letter is “a reflection of the fact that the threat here is so
preposterous, so baseless, that it warranted a clear rebuke,” Schulz said.

Newspapers get libel threats all the time, he said.

“How they respond depends on the facts of the story,” Schulz said.

It’s “hard to imagine a situation where you’d have a more ironclad defense” to a story
than this one, he said.

“It’s troubling that a candidate for president would think this is an appropriate
thing to do—to try to silence the press,” Schulz said.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at
mstanzione@bna.com

To contact the editor responsible for this story:
Jessie Kokrda Kamens at
jkamens@bna.com

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